In the Matter of the Application of Joseph Curley, Appellant, for a Mandamus Order against Dudley S. Mersereau and Others, as Members of the Board of Fire Commissioners of the Village of Endicott, Broome County, New York, Respondents

In the Matter of the Application of Joseph Curley, Appellant, for a Mandamus Order against Dudley S. Mersereau and Others, as Members of the Board of Fire Commissioners of the Village of Endicott, Broome County, New York, Respondents. [MAJORITY] Petitioner has appealed from a final order of the Broome Special Term denying his application for his reinstatement as a member of the fire department of the village of Endicott, N. Y, Petitioner was a regular member of the fire department from 1924 to 1934. In January, 1934, he reported to the board that he received injuries in an automobile accident not connected with the service. He continued to serve thereafter irregularly. On August 1, 1934, he was granted a leave of absence for three months which was later extended and expired January 1, 1935. Petitioner did not return to work because of ill health until February 2, 1935. Meanwhile his name was stricken from the roll. At that time the board had a right to discharge the petitioner without preferring charges and without a trial. Petitioner acquiesced in the board’s action and in his discharge. In October, 1935, petitioner applied for reinstatement. On November 21, 1935, the board by resolution provided that all applicants for positions in the department should be required to pass a physical and mental examination, The petitioner failed to pass such an examination. The Special Term held that petitioner was discharged as a member of the department in February, 1935, and that he was never reinstated; that he was appointed de novo on or about November 21, 1935, subject to certain conditions with which he failed to comply. The evidence sustains the decision of the Special Term. Order unanimously affirmed, without costs. Present — Hill, P. J., Orapser, Bliss and Heffernan, JJ,